Saedi v Allianz Australia Insurance Limited
[2025] NSWPIC 71
•19 February 2025 Replacement dated 28 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Saedi v Allianz Australia Insurance Limited [2025] NSWPIC 71 |
| CLAIMANT: | Khadija Saedi |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 19 February 2025 Replacement dated 28 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about childcare provided to the claimant’s dependant while she said she had treatment for her accident related injuries; claimant referred dispute as a medical assessment matter; insurer submitted childcare services were not related to claimant’s treatment or reasonable and necessary and were not treatment; matter referred to member as a miscellaneous claims assessment matter under Schedule 2(3)(n) for determination of whether childcare services were a form of treatment; claimant submitted childcare was “domestic services” and therefore a form of attendant care services which is a type of treatment recognised in the definition; claimant also argued childcare was domestic services which she had no capacity to provide and she was entitled to statutory benefits for it under section 3.26; disputes about section 3.26 are a matter for Merit Review under Schedule 2(1)(j); parties agreed that decision maker should determine both miscellaneous claims assessment matter and merit review matter; Held – the disputed child care services were not domestic services (one of the examples of attendant care services) and not any other form of attendant care services as they did not aim to assist the claimant with daily tasks; section 3.26(4) deems replacement domestic services provided to an injured person’s dependants as the provision of treatment and care for the injured person; the definition of treatment and care (and attendant services) is therefore not relevant in a section 3.26 dispute; the childcare service provided to the claimant’s dependant are on the facts and circumstances not domestic services within the meaning of section 3.26; the services were school preparation classes which were a form of education service; CAB v AAMI Limited t/as GIO referred to; Liverpool City Council v Laskar, Garzo v Liverpool / Campbelltown Christian School Limited, and Wormleaton v Thomas & Coffey Ltd (No 4) applied; if the childcare services in dispute were a form of domestic services Member held the claimant had no entitlement to statutory benefits as there was no evidence the claimant had provided the education services before the accident and the evidence did not support the services were provided for more than 6 hours a week and for 6 consecutive months. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATES OF DETERMINATION Issued under Division 7.4 of the Motor Accident Injuries Act 2017 The Commission determines: 1. The childcare services in dispute are not domestic services and no statutory benefits are payable by the insurer under s 3.26. Issued under Division 7.6 of the Motor Accident Injuries Act 2017 The Commission determines: 2. The childcare services in dispute are not domestic services and are not a form of treatment and care within the meaning of s 3.24(1(a). 3. The claimant’s costs are assessed at $2,191.20. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Ms Saedi was involved in an accident on 2 June 2023 at Blacktown.
Ms Saedi says she injured her neck, left shoulder and lumbar spine in the accident. She made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with Allianz, the third-party insurer of the vehicle she says caused her accident.
Ms Saedi has had physiotherapy treatment for her injuries funded by the insurer as well as other treatment. The claimant asked the insurer in April 2024 to pay for childcare services which she has incurred, and this request was denied. An internal review affirmed the decision on 23 May 2024.
The claimant lodged an application for medical assessment with the Personal Injury Commission (the Commission) stating that the disputed childcare services were treatment that was reasonable and necessary in the circumstances and treatment that was related to the injuries caused by the accident.
The insurer raised an issue about whether childcare services were treatment or not within the statutory definition. The matter was then allocated to me, as a Member of the Commission, to determine under Schedule 2(3)(n) “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.
LEGISLATIVE FRAMEWORK
Ms Saedi’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Section 1.4 contains a definition of treatment and care which includes amongst other things “attendant care services”. Attendant care services are also defined in s 1.4 as “services that aim to provide assistance to people with everyday tasks and includes (for example) personal assistance, nursing. Home maintenance and domestic services.”
Section 3.24 provides an injured person’s entitlement to statutory benefits for treatment and care as follows:
“3.24 Entitlement to statutory benefits for treatment and care
(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care …,
(c) if the injured person … requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a … carer of the injured person in order to accompany the injured person [while treatment is provided].
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24(3) provides that the Motor Accident Guidelines (the Guidelines) may set the cost for certain treatment and to set certain treatment as reasonable and necessary.
Section 3.25 provides that no statutory benefits are payable for “gratuitous attendance care services.”
Section 3.26 establishes an entitlement to statutory benefits based on the loss of capacity to provide gratuitous domestic services to dependants as follows:
“3.26 Statutory benefits for loss of capacity to provide gratuitous domestic services
(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant’s dependants, but only if -
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in this section - the claimant provided the services to those dependants before the motor accident, and
(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant’s injury, the claimant would have provided the services to the claimant’s dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.
(2) …
(3) …
(4) The provision of domestic services to an injured person’s dependants as provided by this section constitutes the provision of treatment and care for the injured person for the purposes of this Division.
(5) In this section -
gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid and is not entitled to be paid.”
Dispute resolution
Division 7 of the MAI Act provides for the resolution of disputes that may arise in a claim made under the Act. An internal review must be undertaken by insurers before certain disputes can be referred to the Commission for assessment or determination. Disputes about treatment can be determined by Merit Reviewers (under Division 7.4), Medical Assessors (under Division 7.5) and Members of the Commission (under Division 7.6 and in particular subdivision 3).
Schedule 2 of the MAI Act recognises 47 different dispute types and declares some to be Merit Review matters, others to be Medical Assessment matters and others to be Miscellaneous Claims Assessment matters. Relevantly to the matter in dispute in these proceedings:
(a) cl 1(j) of the Schedule declares the following to be a merit review matter – “whether statutory benefits are payable under section 3.26 …, and the amount of statutory benefits so payable”;
(b) cl 2(b) of the Schedule declares the following to be a medical assessment matter - “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”, and
(c) cl 3(n) of the Schedule declares the following to be a miscellaneous claim any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.
There is no specific dispute type declared in the Schedule as to whether a service or a thing is or is not treatment and care within the meaning of s 1.4. In a number of matters before the Commission members have taken the view that deciding whether something in dispute is treatment is an issue of liability for part of a claim for statutory benefits and therefore a miscellaneous claims assessment matter under cl 3(n) of the Schedule.
INSURER DECISION MAKING AND SUBMISSIONS
Claimant’s initial submission
The claimant’s submissions lodged with the application for medical assessment were filed on 9 September 2024.
After setting out the background to the dispute the claimant asks at [8] for a determination that the childcare services requested are reasonable and necessary in the circumstances and relate to the injuries arising from the accident. The claimant says:
(a) she requires childcare in order to pursue “her treatment and manage her recovery” [9a];
(b) the insurer’s declinature breaches cl 4.6(a) of the Motor Accident Guidelines which requires the insurer to “proactively support the claimant” to ensure her recovery and return to activities [9b];
(c) the “treatment” is reasonable and necessary and relates to the injuries, and the insurer is in breach of s 1.3(2)(a) which requires the insurer “to encourage early and appropriate treatment and care to achieve optimum recovery” [11];
(d) the Allied Health Recovery Request (AHRR) completed by Ms Yu dated 11 July 2023 says the claimant requires two sessions a week of physiotherapy to address her multiple injuries and further AHRRs document the claimant’s continuing symptoms [13];
(e) a report from Ms Bambach, exercise physiologist dated 27 February 2024 states the claimant requires pain management due to ongoing high pain levels, nausea and vomiting [14] and Ms Baumbach’s AHRR documents “significantly impaired” functional recovery and fortnightly exercise physiology sessions;
(f) the reports of Pinnacle Rehab dated 28 July 2023 and 31 January 2024 demonstrate the claimant’s capacity to engage in day-to-day activities has been affected and that she requires assistance with her domestic duties [15] and ongoing support for her recovery [16], and
(g) the claimant’s son is four years of age, cannot look after himself, the claimant has limited resources to assist her and therefore it is necessary for her to have childcare services to enable her to attend treatment.
The claimant says at [18] that the insurer has objected to the request for care because it is not childcare or babysitting but a school readiness class. The claimant says the MAI Act and the Guidelines do not provide criteria for what constitutes reasonable childcare for dependants and therefore the type of service is irrelevant.
The claimant says at [19] that the insurer has taken a “rigid and impersonal approach” which is not a “recovery approach” as required by cl 4.79 of the Guidelines. The claimant also submits at [20] that the insurer has not taken the claimant’s individual circumstances, symptoms and treatment history into account.
Insurer’s submissions
The insurer’s original submissions filed on 18 September 2024 assert that the request for childcare is not reasonable and not related to the injuries caused by the accident.
Under the sub-heading “pre-accident treating medical evidence”, the insurer documents the claimant’s 2018 motor accident and symptoms as well as previous complaints of migraine and left shoulder problems, right knee pain and locking. The insurer notes that a month before the current car accident the claimant had been referred to Dr Abraszko, neurosurgeon for neck and left arm pain.
Under the sub-heading “post-accident treatment medical evidence” the insurer refers to the description of the accident and photographs including a photograph showing a dislodged bumper bar and the claimant holding her toddler. The insurer summarises the medical and allied health evidence relied on by the claimant.
The insurer then refers to the certificate of Medical Assessor Young dated 21 June 2024 who certified that the claimant’s injury was a soft tissue injury. His opinion was that the imaging shows a disc bulge and not a protrusion and the bulge and associated fissure were degenerative and not caused by the accident.
In respect of the childcare expenses the insurer submits at [4] as follows:
(a) the Ready! Set! School! invoice concerns a school readiness program that appears to run during the school term [4.2];
(b) the claimant asserts she leaves her son here for 2 hours and 45 minutes in order for her to attend physiotherapy every Friday [4.3];
(c) the payment made by the claimant on 9 February 2024 in the sum of $715 appears to relate to first term between 30 January and 12 April 2024 and repeats the claimant’s evidence that she attended physiotherapy on Fridays [4.4];
(d) on the basis of that evidence, the insurer documents the dates of the 11 Fridays in term 1 when the claimant’s son would have attended Ready Set School [4.5];
(e) the insurer notes the claimant’s summary of her physiotherapy attendances and suggests that only six of those occurred on Fridays (and they are listed) [4.6];
(f) according to the records, the claimant attended physiotherapy on days other than Fridays on three occasions [4.7], and
(g) the insurer refers at [4.8] to the 16 April 2024 invoice and at [4.9] to the dates of second term and submits at 4.10 that only three of five appointments occurred on Fridays [4.10] and five sessions of childcare where the claimant did not attend physiotherapy 4.11].
In summary, of her eight physio appointments during term one, the insurer says six of them occurred on Fridays noting there were 11 Fridays in the term. In term 2 there were five physio appointments and only three occurred on a Friday and presumably there were also 11 Fridays in that term.
The insurer submits at [4.12]:
“Having regards to the above, the Insurer submits that the Claimant’s son’s enrolment in the school readiness program was not at all related to any need by the Claimant for childcare services so that she could attend physiotherapy. As such the Insurer maintains that the care request in questions is clearly not reasonable and necessary in the circumstances or related to the injury sustained in the subject accident as per Section 3.24(2).”
The insurer refers to the criteria in s 3.26(1) and submits at [4.13]:
(a) the childcare services in dispute are a school readiness program and are not domestic services;
(b) there is no evidence that these school readiness services were provided to the claimant’s son by the claimant before the accident, and
(c) there is no evidence that had the accident not occurred these services would have been provided by the claimant to her son for six hours per week for six consecutive months.
On 4 October 2024, the insurer lodged further submissions at the request of the Commission seeking that the medical assessment proceed as a miscellaneous claims assessment matter. The insurer submits:
(a) the care in dispute, is not care within the meaning of s 3.24 as it is not being provided for the injured person [2.1];
(b) the definition of treatment and care in s 1.4 of the MAI Act is noted and Allianz says the childcare service is not treatment provided to the injured person [2.4], and
(c) the care in dispute does not fall within the meaning of s 3.26 either as it is not a domestic service, and there is no evidence the claimant provided this service before the accident or for six hours a week for six months [2.6].
The insurer submitted the subject matter of the dispute was not a medical assessment matter and requested that a scheduled examination with Medical Assessor Home be cancelled.
Preliminary conference
Upon receipt of the insurer’s submissions, the matter was allocated to me, and a preliminary conference was held on 25 November 2024. Legal representatives for both parties attended the conference.
The submissions and issues were discussed. It was noted that the services in dispute were for the first two terms of 2024. The parties were asked to clarify whether there is a dispute about any service provided during the third and fourth term of 2024. It was assumed due to the age of the child, the claimant’s child will be attending school in 2025 and the need for this childcare will cease.
A timetable was set for the provision of final submissions and the issuing of these reasons.
Claimant’s further submissions
The claimant provided additional submissions on 19 December 2024. She submits at [2] that there are two ongoing disputes:
(a) whether childcare services are treatment and care within s 1.4 of the MAI Act (including whether they are attendant care services), and
(b) whether the insurer has a liability under s 3.26 (including the various restrictions and limitations such as the six hours a week, six months or more and whether the services were provided before the accident).
The claimant says:
(a) the claimant’s children are dependants within the definition of s 3.26(5) and she is entitled to statutory benefits for the loss of capacity to provide domestic services to her dependants [4];
(b) she was a stay-at-home mother at the time of the accident and solely responsible for them at the time of the accident and the need for childcare has arisen following the accident in the context of the claimant needing to pursue her own treatment for her injuries [5], and
(c) the childcare services are “attendant care services” [6].
The claimant says a result of the insurer’s denial she has been unable to pursue timely treatment increasing the severity of her symptoms and has been deprived of her rights under s 3.24 [7].
She also says at [8] that the denial of reimbursement of the childcare services has denied her the opportunity to employ a person to provide domestic services. She cited the definition of “attendant care services” in the Motor Accidents (Lifetime Care and Support) Act2006 and asserts that childcare services are such services.
The claimant asserts her most recent Certificate of Capacity (18 November 2024) says she has ongoing physical restrictions [9] and Dr Assem in a report dated 11 October 2024 expressed the opinion Ms Saedi will probably require assistance looking after her young children [10].
Insurer’s further submissions
The insurer’s further submissions were filed on 23 January 2025. The insurer notes at [2.4] the definition of attendant care adopted by the claimant is the same as the definition in s 1.4 of the MAI Act.
The insurer says the claimant has given no reasons or explanation as to why privately provided childcare services are domestic services and come within the definition of attendant care [2.3, 2.5-2.8]. The insurer says the claimant has given no submissions as to the balance of s 3.26.
The insurer repeats at [2.10] that childcare services are not treatment and care and says at [2.11] that childcare services are not “domestic services” and are therefore not attendant care services and are therefore not treatment and care within the statutory definition.
While the term “domestic services” is not defined in the MAI Act, the insurer says at [2.12] it is defined in the Civil Liability Act 2002 (CLA Act), s 15B as “services of a domestic nature.” The ordinary meaning of services of a “domestic nature” does not include “private childcare services with an academic purpose” [2.13].
The insurer says at [2.14] that there is no evidence that the services now being provided to the claimant’s dependant was provided before the accident and no evidence that but for the accident the claimant would have provided these services for six hours per week for six consecutive months. The insurer says at [2.15] that regardless of the accident the claimant would have enrolled her child in this program.
REVIEW OF THE EVIDENCE
The claimant completed a claim form on 25 June 2023.[2] In it she refers to a previous motor accident on 29 January 2018 and a previous claim made against GIO. In terms of the current accident, she left some of the details blank (including the date and time of the accident) but indicates she was the driver of the middle car in a three car rear end accident. She says in terms of her injuries:
“I got pain in my neck all the way down my left shoulder and back. Right knee and big toe.”
[2] Page 4 of the claimant’s bundle.
Ms Saedi says she was not taken to hospital and was suffering no illness or injury affecting those parts of her body she says were injured in the accident. Understandably, no employment details were given.
No copy of the request for childcare has been provided but the insurer’s internal review documents it as follows:
“Please find the attached copy of previous receipt which I haven’t sent to you before and also the new payment bill.
This is a place where I leave my son for 2 hours and 45 minutes so I can go to my physio appointment every Friday.”
The letter rejecting the request has been provided. On 7 May 2024 Allianz declined the request to pay for childcare[3] while the claimant attended physiotherapy on the basis that the childcare services are “not considered to be reasonable and necessary treatment and care.”
[3] Page 8 of the claimant’s bundle.
Allianz further says, on the second page of the letter:
(a) the childcare claimed was provided by Ready! School!;
(b) all injuries have been assessed by the insurer as threshold injuries;
(c) the childcare was not pre-approved for appointments, and
(d) no benefits are payable for the cost of treatment and care that was not reasonable and necessary in the circumstances or did not relate to the injury.
After a request for internal review, Allianz conducted the review. The insurer documents the requests for physiotherapy, exercise physiology, and psychology and reports from Dr Abrazsko, neurosurgeon and the exercise physiologist along with clinical notes. The insurer the quotes the request for childcare and the internal review request with complaints of ongoing pain in the cervical, thoracic and lumbar spine.
Allianz then:
(a) refers at [17] to the request as a request for treatment and says it must be causally related to accident-related injuries and reasonable and necessary in the circumstances;
(b) refers at [18] to five criteria set by the State Insurance Regulatory Authority for reasonable and necessary treatment;
(c) cites at [19] s 3.26(2) and says at [20] that the request for childcare is not a request for treatment under s 3.24 of the MAI Act but recognises at [21] that it is a request under s 3.26;
(d) notes at [22] the claimant’s injuries are threshold injuries and says at [23]:
“I do not accept that soft tissue injuries would create an incapacity so as to warrant childcare services. There is no medical evidence before me to support such an incapacity.”;
(e) describes at [24] the invoice for the Ready! Set! School! Program, notes the contents of the website to “develop skills for school and beyond” and records the limited operation hours of the program. The insurer then says at [25]:
“I do not consider that this is a childcare or babysitting service. Rather, I consider that this is a form of extracurricular education to prepare your child for school. I therefore do not consider that this is classified as a domestic service for the purposes of s 3.26 of the Act”, and
(f) says at [27] that even if this program was domestic services, the pre-conditions of s 3.26 are not met. The insurer accepts at [3.26] that the claimant’s four-year-old son is a dependant, accepts at [29] that the program has been paid for and is not gratuitous care and agrees at [30] that the claimant’s son cannot perform the service himself due to his age. The insurer says at [31] that s 3.26(1)(c) and (d) says the services must be provided for six hours per week and for at least six consecutive months and that the services are only provided during school weeks for two hours and forty-five minutes a week.
The claimant has provided[4] an invoice for Ready! Set! School! dated 16 April 2024 for Friday Term 2 2024 in the sum of $715 plus GST of 10% making a total of $786.50. There is a mobile banking transaction from February 2024 recording a payment of $715 dollars.
[4] Pages 25 and 26 of the claimant’s bundle.
The claimant relies on an AHRR form dated 11 July 2023[5] seeking an initial eight sessions of physiotherapy noting Ms Saedi was a full-time housewife, she required assistance with self-care and activities of daily living and that she was only able to drive for short distances due to fear, pain and difficulty.
[5] Page 27 of the claimant’s bundle.
Ms McClean, rehabilitation consultant and occupational therapist from Pinnacle Rehab provided an activities of daily living assessment report for the insurer dated 28 July 2023 after an assessment on 24 July 2023. The report recommended short term cleaning services be provided for two hours a week for four weeks.
Ms McClean notes the claimant lives in a home with her father and mother-in-law, her husband and four children aged 14, 12, 8 and 3. Her husband worked full time and her in-laws were said to be elderly and could not assist her.
Further AHRR forms were provided for physiotherapy and exercise physiology and reports from the claimant’s exercise physiologist, Ms Baumbach have been provided.
In a second assessment dated 31 January 2024,[6] Ms McClean recommended a further eights weeks of two hours per fortnight cleaning assistance and some aids for the shower. Lawn mowing assistance was not supported as the claimant was paying for this privately before the car accident. The claimant required assistance with rental payments which was also not supported.
[6] Page 60 of the claimant’s bundle.
While the documents and reports relied on by the claimant refer to difficulties with activities of daily living, none of them document any difficulty with caring for or educating her youngest child.
Certificates of fitness have been provided by Dr Suleiman[7] certifying the claimant fit for the following hours of work or duties:
[7] Page 82 of the claimant’s bundle and from page 14 of the additional bundle.
(a) on 10 July 2023, 8 August 2023, 11 September 2023, for six hours per day, five days per week
(b) on 10 October 2023, eight hours per day, five days per week;
(c) on 20 November 2023, six hours per day, five days per week;
(d) on 11 December 2023, six hours per day, four days per week;
(e) 29 January 2024, totally unfit for any form of work or duties;
(f) 7 February 2024, six hours per day, four days per week;
(g) 7 March 2024, six hours per day, five days per week;
(h) 2 April 2024, totally unfit for any form of work or duties;
(i) 17 September 2024 – details of capacity left blank;
(j) 17 October 2024, totally unfit for any form of work or duties, and
(k) 18 November 2024 – details of capacity left blank.
Dr Assem, rehabilitation and musculoskeletal physician provides a report to the claimant’s solicitors dated 11 October 2024.[8] He has a record of the claimant working as a “picker and packer” in a warehouse before the accident, the claimant ceasing work after the birth of her first child but that she had planned, in early 2023 when her youngest child “would be approaching school age”, returning to work. She was actively looking for jobs at the time of the accident.
[8] Page 3 of the claimant’s additional bundle.
Dr Assem has a history of the claimant’s previous 2018 accident and noted previous CT scans of her neck showed degenerative changes and disc protrusions.
Dr Assem documents the claimant’s difficulties with her household tasks and recommended she be provided with two to four hours of professional assistance per week for at least 12 to 24 months. He says, “In addition, she will probably require assistance with looking after her young children.” He recommends an assessment be done in respect of this.
The insurer provided a bundle of over 700 pages of documents. Most of them relate to the claimant’s medical history and treatment following the accident and it is not necessary to document those in these reasons.
The insurer did provide screen shots of the website for Ready! Set! School!.[9] Some of the information on the website includes:
[9] Page 722 of the insurer’s bundle.
(a) they provide a school readiness program developing skills for “school and beyond”;
(b) they aim to provide a smooth transition from preschool to kindergarten;
(c) they have designed fun learning experiences;
(d) the program has been developed by a person with 20 years teaching experience, a Bachelors and a Masters degree in Education;
(e) the program includes, social and emotional well being and development, fine motor skills, early literacy and language skills, early numeracy and mathematical skills;
(f) the services are offered from 9.00am to 11.45am only, and
(g) they have three locations in the hills district.
CONSIDERATION OF THE ISSUES
Are domestic services provided to an injured person’s dependants treatment and care?
Section 1.4
The parties have provided submissions about whether child-care services come within the definition of treatment and care in s 1.4 of the MAI Act.[10]
[10] The claimant has referred to the identical definition
The claimant submits childcare is domestic services which is a form of attendant care service and therefore a form of treatment and care within the meaning of s 3.24(1). The insurer submits that s 3.24(1) concerns treatment and care provided to or for the injured person for her injuries and not care provided to other persons, such as in this case the claimant’s children.
I note the opening of s 3.24(1) includes the phrase, “providing treatment and care for the injured person.” The important word there is “for” and not “to”. This suggests that care provided to the claimant’s dependants could be a form of treatment as it is care provided to others albeit for the benefit of the claimant.
Treatment and care is defined in s 1.4. There is a finite list of 11 kinds of things or services that are treatment and care, with the option of other kinds to be prescribed in the Motor Accident Regulation 2017 (Regulation). There is no additional kind of treatment or care in the Regulation and the parties appear to agree that the only possible kind of treatment that childcare services would come within, would be attendant care services.
Attendant care services are also defined in s 1.4 as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.” The child care services in my view are not a form of personal assistance, nursing or home maintenance. While these, along with domestic services are examples, childcare services as part of an education program for a dependant do not, in my view “provide assistance [to the claimant] with everyday tasks”. I will consider the meaning of domestic services later in these reasons.
Section 3.26(4)
Neither party addressed s 3.26(4) of the MAI Act. This section in my view clearly deems replacement domestic services provided to an injured person’s dependants as the provision of treatment and care “for the injured person”.
The definition of “treatment and care” in s 1.4 while relevant to disputes involving s 3.24(1) and (2) is not relevant to disputes involving s 3.26.
If the services provided to Ms Saedi’s children are domestic services within the meaning of s 3.26(1) then those services must, by the operation of s 3.26(4), be treatment and care services provided for Ms Saedi for the purposes of the Division (which includes s 3.24).
Who has power to determine what are domestic services?
As a Member of the Commission I have the power under Schedule 3(2)(n) to determine what “domestic services” are and therefore whether they are a form of “attendant care services” and one of the 11 kinds of “treatment and care” as defined in s 1.4.
Disputes about what “domestic services” are and whether the claimant can recover statutory benefits for the lost capacity to provide those services under s 3.26 is a matter for a Merit Reviewer as a declared merit review matters in accordance with Schedule 2(1)(j).
I hold an appointment as both a Member of the Commission and as a Merit Reviewer.
I note that both parties have provided submissions about how s 3.26 should be applied and both parties been given the opportunity to provide additional submissions.
On 17 February 2025 I caused a message to be sent to the legal representatives of the parties asking them to confirm they had no objection to me determining any declared merit review matters surrounding s 3.26. Both parties responded confirming that I should determine the issues about s 3.26 that have arisen in this matter.
Are the childcare services provided to Ms Saedie’s dependants “domestic services”?
The claimant has submitted that the childcare services are “attendant care services” because they are “domestic services” but gives no reasons or further explanation for why this may be so. The insurer pointed this out in its submissions, but no further submissions have been lodged by the claimant addressing this.
The insurer submits the definition of “domestic services” in s 15B of the CL Act applies, that is that domestic services are “services of a domestic nature”. Section 3.26(5) provides a definition of “gratuitous domestic services” which is “services of a domestic nature given gratuitously”. This aligns with the CL Act definition. In my view the meaning of “domestic services” in s 3.26(5) is services of a domestic nature.
It is quite clear that domestic services would include household services such as laundry, cooking, cleaning, bed-making as well as washing, dressing and feeding a claimant’s child. But it is not clear whether domestic services includes childcare services, whether that be informal childcare such as occasional babysitting or formal child care such as those offered daily or weekly in a structured pre-school or school setting such as the services offered by Ready! Set! School!
In CAB v AAI Limited t/as GIO[11] Merit Reviewer Boyd-Boland dealt with a claim about before and after school care. There was no dispute raised and argued in that case about whether that sort of care came within the meaning of “domestic services” and the claimed statutory benefits were not allowed because the claimant had not provided the service before the accident, There was evidence that the claimant’s child in that case had been in before and after school care before the accident.
[11] [2024] NSWPICMR 20.
There is no case, of which I have been taken to that has determined the issue of whether domestic services include childcare services within the statutory benefits scheme of the MAI Act. I am also not aware of any case in a damages claim interpreting s 141B the Motor Accidents Compensation Act 1999 (the MAC Act) or s 15B of the CLA Act that has dealt with this issue before. Those provisions, which are very similar, would appear to be the foundation for the recognition of the entitlement to statutory benefits for the lost capacity to provide domestic services to dependants contained in s 3.26.
The leading case concerning the meaning of “domestic services” is Liverpool City Council v Laskar[12] where Whealy JA said:
“[58]. … The meaning to be given to the phrase ‘domestic services’ in any particular context will vary according to the nature of the dependency, the obligations the relationship will normally impose, and the history of the provision of past domestic services. At its most basic, in the case of children, domestic services must mean at least looking after and caring for those children where they themselves are incapable of performing the services themselves by reason of their age or physical or mental incapacity. This point of distinction was recognised by Campbell JA in Amaca Pty Ltd v Novek at [97–101]. His Honour saw a clear distinction between looking after children, on the one hand, and performing domestic duties such as cleaning up and preparing meals for the children, on the other.
[59] The concept (looking after and caring for children by the provision of domestic services), ought be given its ordinary meaning and not a restricted or narrow meaning.”
[12] [2010] NSWCA 52.
The claimant’s daughter in Laskar required significant nursing care (described at [33]). She was unable to shower or use a lavatory, she required a catheter, was wheelchair bound and required assistance with movement 24 hours a day. The claimant and his wife stretched and massaged their daughter’s limbs during the day, applied splints during the day and a brace at night. The Court of Appeal allowed the claim made for the claimant’s loss of capacity to provide the care he used to provide to her on the basis the claimant’s daughter could not perform the service he performed for her.
In Garzo v Liverpool / Campbelltown Christin School Limited[13] the court also permitted damages for the claimant’s loss of capacity to provide services to her autistic and vision impaired child who at the age of seven was not toilet trained and required nighttime supervision.
[13] [2011] NSWSC 29.
The case of Wormleaton v Thomas & Coffey Ltd (No 4)[14] involved a damages claim for a gentlemen who had provided “diversionary activities” (which included camping, jet skiing, fishing, dirt bike riding, dog walking) to his severely disabled son. There was no dispute about the fact that the plaintiff in that case had lost the capacity to provide these services but there was a dispute about whether they were or were not domestic services. Justice Campbell said at [150]:
“…I am also of the view that the type of avocational or diversional services that Mr Wormleaton provided to his son are gratuitous domestic services within the meaning of s 15B, having regard to the circumstances of the Wormleaton household and Michael’s need for assistance to perform activities others without his disabilities would provide for themselves. In the ordinary case of parent and child of ordinary fitness and mental ability spending leisure time together may not amount to the provision of domestic services. But that is not this case.”
[14] [2015] NSWSC 260.
The three cases referred to above have taken a wider view of the meaning of domestic services to include quasi nursing care (changing of catheters and massage) and diversionary out of home leisure type activities provided by injured parents to their disabled children.
I note that the objects of the MAI Act include a number of competing principles. On the one hand the objects refer to the affordability of the scheme (s 1.3(2)(d)) and a desirability for certainty and predictability to inform premium setting (s 1.3(3)(c). On the other hand, the objects also include the requirement to “encourage the early and appropriate treatment and care to achieve optimum recovery” from injury (s 1.3(2)(a)) and to provide early and ongoing financial support to injured persons (s 1.3(2)(b)).
I am of the view that some forms of childcare could come within the definition of “domestic services” in particular childcare such as babysitting that is provided in the home or in an informal setting on an occasional or short term basis. I can also imagine that a claimant with a broken arm from an accident and a newborn might need almost full-time childcare as the claimant recovered. But childcare that is provided externally in an educational setting by a qualified childcare provider is not in my view services of a domestic nature. Having read the invoice from Ready! Set! School! and the information obtained by the insurer from the website, the childcare being provided aligns with school terms and is designed to get a child ready for school. It has a curriculum that includes literacy and numeracy programs. The service is, in my view more aligned to an educational service than a household or domestic service.
I am not satisfied that the childcare services provided by Ready! Set! School! are services of a domestic nature.
The disputed childcare services are not a form of attendant services within the meaning of s 1.4 of the MAI Act and therefore they are not a form of treatment and care within the meaning of s 3.24(1). For that reason, there cannot be a medical assessment matter that can be determined by a Medical Assessor.
As I am not satisfied that the childcare services in dispute are domestic services, it also follows that the claimant is not entitled to statutory benefits for the services claimed and provided in accordance with s 3.26.
If the disputed care is domestic services, how would s 3.26 apply?
If I am wrong, and childcare services are a form of domestic services and therefore the claimant has a possible entitlement to statutory benefits for them, I would find in respect of s 3.26 as follows:
(a) has the claimant employed a person to provide the services? The insurer has not raised an issue concerning the employment issue. There is certainly no contract of employment in evidence between the claimant and the operators of Ready! Set! School!. There is, however, certainly a commercial relationship between the care providers and the claimant. My view is that if childcare services are a form of domestic services that a contracted external childcare provider would be a person employed to provide the service;
(b) the services claimed do not satisfy the four factual preconditions listed in s 3.26(1). I note that if the claimant fails to satisfy one of those four then the claim for these benefits must fail and in that respect:
(i)there is no dispute that the claimant’s son was, at the time this dispute arose, four or five years old and, because of his age could not provide childcare services for himself while his mother attended physiotherapy;
(ii) section 3.26(1)(a) provides that the claimant provided the services to her son before the accident. There is no doubt that, as a stay-at-home mother the claimant would have performed domestic services including caring for her child. It can be assumed she fed her child, dressed her child, bathed her child and entertained her child. There is no evidence before me as to whether she provided services to her child like those offered by Ready! Set! School! before the accident, and
(iii)there is also the requirements of s 3.26(1)(c) that the services be provided for at least six hours per week for at least six consecutive months. The evidence from the claimant’s request and the website material is that the claimant’s child attended only one day per week for 2 hours and 45 minutes per week, well short of the six hours per week required. The unchallenged submission from the insurer is that a term is 11 weeks. Terms are usually interspersed with holidays. It is unclear whether the childcare services being provided in terms one and two by Ready! Set! School! are for a consecutive six-month period.
Had I been of the view that the childcare in dispute was domestic services, the claimant’s claim for her loss of capacity to provide domestic services would have failed in any event under both s 3.26(1)(a) and (c).
CONCLUSION
As a Member of the Commission I have determined that the childcare services provided by Ready! Set! School! are not domestic services and are not one of the example provided in the definition of attendant care services or otherwise and are therefore not a type of treatment and care entitling Ms Saedi to statutory benefits under s 3.24(1). Having made that decision there is therefore no issue that can arise under s 3.24(2) and no medical assessment matter that can arise. It is a matter for the parties to consider discontinuing the proceedings or for the Commission to decide whether to dismiss the proceedings.
As a Merit Reviewer of the Commission, I have determined that the childcare services provided by Ready! Set! School! are not domestic services and therefore Ms Saedi is not entitled to statutory benefits under s 3.26.
The claimant’s application for the services was made on the basis she needed the service in order to allow her to attend physiotherapy appointments and progress her recovery. I note the insurer’s unchallenged analysis of the records is that the relationship between the claimant’s physiotherapy and the need for childcare may not be made out. Section 3.24 provides that an injured person is entitled to the cost of treatment, the cost of transport and accommodation in order to get treatment including travel and accommodation for a carer to accompany them to get that treatment if they need it. Section 3.24 could provide for childcare or care of dependants in order for the injured person to obtain treatment covered by the statutory benefits scheme, but it does not.
Whether all forms of childcare or only some forms of childcare could come within the meaning of domestic services and therefore be a form of statutory benefits under s 3.24 or s 3.26 is not clear. It is possible the Regulation could provide clarification in the definition of treatment within s 1.4 as could the Guidelines in accordance with s 3.24(3), but they do not.
Costs
The claimant had requested costs of the proceedings. The insurer was asked whether it conceded the claimant was entitled to costs. The insurer did concede that the claimant’s solicitor should be entitled to the maximum professional costs for a regulated miscellaneous claims assessment matter but that costs are not permissible for a merit review matter
Noting the insurer’s concession, and the fact that this dispute has involved the determination of both a miscellaneous claims assessment matter as well as a merit review matter, I assess the claimant’s costs at $1,992 plus Goods and Services Tax.
Obvious error in, and revision of the statement of reasons
On 25 February 2025, after the certificate of determination and statement of reasons were issued to the parties, the insurer applied to correct what it considered to be obvious errors in paragraphs90 and 92. After seeking a response from the claimant (there was none) I determined that it was appropriate to correct the error in paragraph 92 and to amend paragraphs 89 and 90 and the heading above paragraph 91 in order to clarify the intended meaning.
2
4
0